Re-Entering the Arena: Restoring a Judicial Role for Enforcing Limits on Federal Mandates

Eastman, John C., Harvard Journal of Law & Public Policy

I. INTRODUCTION

Originalists sometimes find it difficult to square the Framers' Constitution with the minute details of statutes dealing with an administrative state that bears little or no relationship to the kind of government the Framers established. We can and should, nevertheless, keep in mind some guiding principles, and consider the effect of the Unfunded Mandates Reform Act of 1995 (1) ("the UMRA" or "the Act") on the enactment and implementation of modern administrative statutes.

One principle: under our Constitution, the lawmaking power is assigned to Congress exclusively. Although much ignored, this non-delegation doctrine is an important foundational principle that may partly explain the different levels of effectiveness that have been achieved by Title I of the Act, which is applicable to Congress, and Title II, which is applicable to executive agencies.

Further, there is the principle of enumerated powers. Overlooked for the better part of the last century, this principle has undergone a renaissance of sorts since the Supreme Court's decision in United States v. Lopez, (2) which was rendered shortly after Congress enacted the UMRA. Any assessment of the UMRA should, therefore, be done in light of renewed dedication to this core founding principle.

Finally, there is the federal system itself. Although much of the debate over the UMRA has centered on the need to protect state and local governments from an overreaching federal government, little attention has been paid to one of the Founders' key purposes for keeping States as separate sovereign entities in the constitutional system. The federal structure envisioned by the Framers, and in particular the maintenance of state governments as separate sovereign entities and not just federal administrative units, was designed to protect private liberty, not simply to protect the States qua States. The federal structure accomplished this, in part, by insuring accountability in government, as Justice Scalia noted in his opinion for the Court in Printz v. United States. (3)

The mini-revolution in 1994 that gave Republicans control of Congress for the first time in forty years, and which led to the enactment of the Unfunded Mandate Reform Act of 1995 as part of the Contract with America, implicitly had these principles in mind. This Article considers how successful the UMRA has been in furthering these principles and how shortcomings of the UMRA that have become evident over the past seven years might be corrected to further these principles still further. Part II of the Article elaborates on the general federalism principles that are at issue. Part III briefly summarizes the key provisions of the UMRA and discusses recent testimony in Congress about the effectiveness of those provisions. Part IV addresses in greater detail how the Act has fared in the regulatory agencies and suggests some amendments that will increase its effectiveness. Finally, in Part V, the Article will conduct a similar analysis with respect to the Act's implementation in Congress itself.

II. SOME GENERAL PRINCIPLES ABOUT FEDERALISM

When the Framers of our Constitution met in Philadelphia in 1787, it was widely acknowledged that a stronger national government than existed under the Articles of Confederation was necessary if the new government of the United States was going to survive. The Continental Congress could not honor its commitments under the Treaty of Paris; it could not meet its financial obligations; it could not counteract the crippling trade barriers that were being enacted by the several States against each other; and it could not even insure that its citizens, especially those living on the western frontier, were secure in their lives and property. (4) But the Framers were equally aware that the deficiencies of the Articles of Confederation existed by design, due to a genuine and almost universal fear of a strong, centralized government. …

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